The Ontario Superior Court of Ontario issued an endorsement on November 19th that demonstrates a proper understanding of the Court of Appeal for Ontario’s judgement in Citi Cards v Pleasance. Justice Morgan said (with emphasis added):
Both parties’ counsel concede that the mortgage companies are wary about disclosing information about a mortgage debt to anyone other than the debtor himself due to the operation of Ontario’s [sic] privacy legislation . The Personal Information Protection and Electronic Documents Act (“PIPEDA”) would seem to prohibit banks and other organizations from making precisely the type of voluntary disclosure that the Plaintiff seeks. It is little wonder, therefore, that the Plaintiff cannot obtain the up to date mortgage statements by simply asking the mortgagees for them.
The Court of Appeal has pointed out in Citi Cards Canada Inc. v. Pleasance, 2011 ONCA 3 (CanLII), 2011 ONCA 3, at para. 29, that under PIPEDA “[a]n organization may disclose personal information…only if the disclosure is [authorized by one of the exemptions]”. Those exemptions are contained in section 7.3 of PIPEDA. That section provides, inter alia, that disclosure of information is permitted by an organization such as Griffin’s mortgagees where that disclosure is “required to comply with a subpoena or warrant issued or an order made by a court…” The Plaintiff did not join the mortgagees as respondents to the motion before me, but he is of course free to do so at a future date.
The last statement suggests that a Court will entertain a motion for production of a mortgage statement from a mortgagee notwithstanding PIPEDA. Citi Cards says that courts should grant such orders sparingly given PIPEDA protects the privacy of mortgagors but does not mean that a court is prohibited from making such an order. There has been some confusion about this point.